Young immigrants who suffered abuse sue over changes to special protection program

Jan. 2, 2019 2:05 PM PT

When Alex thinks about her childhood in Guerrero, Mexico, she remembers the abuse.

There was the time her mother threatened to burn her hands on the stove because she had cried after being hit. And the time her mother didn’t get her medical treatment after she caught her finger in a steel gate. Or the many times she had to beg neighbors for food because her mother punished her by not feeding her.

Now a 22-year-old Cal State Fullerton student studying animation, Alex moved to San Diego at age 7 to live with her paternal grandmother. For decades, young immigrants like her have benefited from a legal classification called special immigrant juvenile status, which allows them to live in the United States and embark on a path to U.S. citizenship.

Nationwide, SIJS is available to immigrants under age 21 who have been abused, abandoned or neglected by one or both parents if a state court finds it’s against their best interest to be returned to their parents or sent back to their home country. Implemented by Congress as part of the Immigration Act of 1990, the protections increasingly had been used in recent years by minors who arrived unaccompanied at the Mexican border.

But since the beginning of 2018, the Trump administration has been rejecting special status applications from immigrants who are over 18, despite court orders finding that they were mistreated.

In response, Alex, who is using an alias out of fear of retaliation, and three other young immigrants living in California have sued the administration, saying their applications were unlawfully denied.

“I think they’re just trying to find loopholes, honestly, to not let people have what was once provided to them,” Alex said. “The small possibility that we have to become U.S. citizens … is getting smaller and smaller. I feel like that’s their goal: to make it almost impossible for one to be legally in the U.S.”

The administration has said that it is adhering to laws in a majority of states that set adulthood at age 18.

U.S. Citizenship and Immigration Services “continues to ensure that children who have been abused, abandoned or neglected receive the humanitarian benefits they are eligible for,” said spokesman Michael Bars.

Critics contend that the shift is further evidence that the federal government is trying to create as many obstacles as possible for immigrants in need of humanitarian protections.

According to lawyers bringing the case against Citizenship and Immigration Services, several hundred young people in California could be affected by the denials this year.

In October, Judge Nathanael Cousins of the U.S. District Court of Northern California issued an order that bans the government from deporting or placing into deportation proceedings any SIJS applicants in the state who are over 18 while the lawsuit proceeds.

The four plaintiffs in the case experienced similar circumstances of abuse or neglect.

One is a 19-year-old New Zealand citizen who was abandoned by both parents at 4 months old and raised by her aunts. Her application was denied in April by USCIS. Another is a 19-year-old from Honduras who was abandoned by his parents shortly after birth and raised by a cousin. His application has been pending for more than a year, despite the requirement under law that SIJS petitions be decided within six months.

“I think this is part of the administration’s attack on immigrants,” said attorney Sara Van Hofwegen of Public Counsel, a Los Angeles-based pro bono public interest law firm. “Very little immigration law has changed in the last two years, but we’re seeing a dramatic change across all forms of relief.”

The case follows a class-action lawsuit in the same court challenging the Trump administration’s decision to end temporary protected status for hundreds of thousands of immigrants from several countries.

Bars, the Citizenship and Immigration Services spokesman, said the agency could not comment on pending litigation.

The SIJS lawsuit hinges in part on states’ differing definitions of the age of adulthood.

To obtain special status, applicants first need a ruling from a juvenile court in their state finding they were mistreated and either declaring them a dependent of the court or appointing them a guardian. Afterward, the applicant submits the judge’s order with the petition to USCIS.

In most states, where 18-year-olds are considered adults, courts can issue the orders required for SIJS applications only through age 17. But California and a few other states define children as being under age 21 for the purposes of establishing guardianship.

In late 2015, the California Legislature passed a law allowing courts to appoint guardians for people 18 to 20 years old for the purpose of applying for SIJS. In approving the bill, the Legislature wrote that it was “particularly necessary in light of the vulnerability of this class of unaccompanied youth, and their need for a custodial relationship with a responsible adult as they adjust to a new cultural context, language, and education system, and recover from the trauma of abuse, neglect, or abandonment.”

Maryland enacted a similar law to California’s in 2014. In Nebraska and Alabama, the age of adulthood is 19. In Mississippi, it’s 21.

New York, where the age of adulthood is 18, amended its family law in 2008 to allow anyone to obtain legal guardianship until age 21. Lawyers there filed a class-action lawsuit against USCIS in June, challenging the agency’s stance that New York family courts don’t count as juvenile courts in determining SIJS eligibility. Lawyers in California say applicants have received similar rejection responses from Citizenship and Immigration Services.

Under the Trump administration, the citizenship and immigration agency has stopped accepting applicants who are over 18 but under 21, saying they are not juveniles. It’s a departure from the way applications were routinely processed since the law was enacted in 1990 and expanded in 2008.

More than 70,000 people have applied for the protections since 2010, according to USCIS figures. Applications grew significantly after a 2015 influx of unaccompanied children at the border. The agency received nearly 17,000 applications from October 2017 — the start of the last fiscal year — to June, the last month for which data is available.

A spokesman for USCIS told Politico in April that the agency had rejected hundreds of applicants based on guidance issued in February but never announced publicly.

Compounding the issue, lawyers say, is the increasing length of time it’s taking for applicants to get a response.

The number of pending applications has more than tripled since 2016. In 2017, close to 19,000 applications were pending. As of June, more than 30,000 applications remained unresolved.

Plaintiffs’ lawyers say that SIJS applicants are at further risk of deportation based on another policy change that the citizenship and immigration agency implemented in July, which directs its officers to begin removal proceedings against anyone who is denied an immigration benefit.

“These children brought themselves to the attention of the U.S. government, relying on the language of the law,” said attorney Mary Tanagho Ross of Public Counsel. “The government is saying, ‘We can ad-hoc reinterpret the law and change our minds and punish you for it.’ It’s really a bait-and-switch.”

The administration’s clampdown is squeezing immigrants such as Jay, a 22-year-old from Mexico who is another plaintiff in the lawsuit.

She was brought to the United States at age 7 and suffered years of physical abuse by her father. She fled in 2014 and a former computer science teacher in San Jose took her in. Last year, the Alameda County Probate Court appointed the teacher as her legal guardian.

Forced to drop out of community college in 2016 after being diagnosed with thyroid cancer, Jay said her life now consisted of doctor’s appointments and lab tests. She suffers anxiety and depression from the trauma she endured as a child.

In July, Jay received a letter stating that USCIS planned to deny her special status application.

She has temporary protection from deportation under Deferred Action for Childhood Arrivals, which the Trump administration announced would end last year. In response to lawsuits, two U.S. district courts halted the program’s termination and required USCIS to continue accepting renewal applications from DACA recipients while the lawsuits moved forward.

Jay had expected that applying for SIJS would be the last of her legal hurdles.

“I had all the hope that this was going to be the last process that I would need to go through,” she said. “It’s completely unfair. There’s a lot of us that left our country when we were kids. That’s not a home that we know.”

At the October court hearing, Department of Justice attorney Ari Nazarov argued that 18-year-olds are adults under California law, despite the 2015 law extending their status as minors for SIJS applications. He said those filed by immigrants between 18 and 21 can be considered only in states such as Nebraska and Mississippi, where the general age of adulthood is over 18. He acknowledged that applicants — especially the plaintiffs — run the risk of being referred to Immigration and Customs Enforcement and placed in deportation proceedings. But he said they weren’t at immediate risk of deportation.

“If removal proceedings even were to happen right now, it would take years before they’re resolved,” he said, noting that they have the right to appeal.

He also argued that SIJS doesn’t automatically grant recipients legal status because later they have to apply to become legal residents.

“All it is is just a classification,” he said. “So there’s no irreparable harm here.”

Alex disagrees. The possibility that she could be deported in the future makes her worry about a lot of things: being separated from her grandmother, her friends and her boyfriend, not being able to finish college or fulfill her dream of becoming a cartoon animator.

Most frightening of all is the thought of being tracked down by her family in Mexico and enduring more abuse from her mother.

“I’m terrified to go back,” she said. “My life is here.”

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